Ohio Workers’ Compensation Decisions: 2010 Court of Appeals

Ohio Workers’ Compensation Decisions

2010 Court of Appeals

This page lists Ohio Court of Appeals workers’ compensation decisions summarized in 2010, except for decisions adopting a lower court or Magistrate decision, or which decide a case based on a previous decision.

Select the case name to read the decision on the Ohio Supreme Court’s web site. For older Court of Appeals workers’ compensation decisions see our Court of Appeals archive page or see our case index for decisions organized by topic.

December 2010

December 16, 2010

Brown, State ex rel. v. Indus. Comm. (12/16/10)

Temporary Total: When injured worker challenges employer’s decision to fire him for violation of written work policy, Commission must rule on whether firing actually violated policy before it can find that injured worker voluntarily abandoned his employment when he was fired for violation of a written work policy.

Vote: 3-0
Opinion by: Judge Klatt
Appellate District: 10

Deal, State ex rel. v. Indus. Comm. (12/16/10)

Permanent Total: Industrial Commission cannot reject medical report for arbitrary reason.

Vote: 2-0, 1 concurs in part and dissents in part
Opinion by: Judge Bryant
Appellate District: 10

December 14, 2010

Combs, State ex rel. v. Indus. Comm. (12/14/10)

Permanent Total: Commission cannot deny permanent total because of failure to pursue rehabilitation without considering effect of injured worker’s possible illiteracy and low intellectual functioning.

Vote: 3-0
Opinion by: Judge French
Appellate District: 10

December 6, 2010

Carter v. R&B Pizza Co., Inc. (12/6/10)

Injury: Facts demonstrated that worker was injured in the course of her employment and was entitled to participate for injury which occurred while she was driving supplies to restaurant.

Vote: 3-0
Opinion by: Judge Donofrio
Appellate District: 7

December 2, 2010

Oakwood, State ex rel. v. Indus. Comm. (12/2/10)

Employer: Order contained “some evidence” to support Commission’s finding of what party was proper employer, Commission is not required to consider specific list of factors.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

November 2010

November 16, 2010

McBee, State ex rel. v. Indus. Comm. (11/16/10)

Fraud: Commission improperly found fraud when the evidence did not establish that claimant knew what activities constituted “work” for purposes of temporary total compensation.

Vote: 2-0, 1 concurs in part and dissents in part
Opinion by: Judge Brown
Appellate District: 10

November 15, 2010

Lewis v. Cartijo (11/15/10)

Employer: Evidence of irregular nature of work, lack of formal agreement, limited direction and amount of autonomy provided required finding that individual was not an employee.

Vote: 3-0
Opinion by: Judge Wise
Appellate District: 5

October 2010

October 29, 2010

Todd v. Todd Heating Plumbing Bldg. Co., Inc. (10/29/10)

Injury: Res judicata applies and bars consideration of a second application for allowance of an injury where the BWC had adjudicated a previous application for an injury and that decision had not been appealed.

Vote: 3-0
Opinion by: Judge Farmer
Appellate District: 5

Spencer v. FHI, L.L.C. (10/29/10)

Trial Practice: Failure to serve Administrator with notice of appeal was not jurisdictional and trial court improperly dismissed case and denied motion to amend complaint to add Administrator as party.

Vote: 3-0
Opinion by: Judge Grady
Appellate District: 2

October 12, 2010

Brown v. Lake Erie Elec. Co. (10/12/10)

Injury: Fixed-situs employee injured in car accident while traveling to job site is not entitled to participate.

Vote: 3-0
Opinion by: Judge Powell
Appellate District: 12

October 1, 2010

Isom v. Dayton Power & Light Co. (10/1/10)

Injury: Dual causation rule applies to workers’ compensation claims; under dual causation rule, where worker suffered multiple falls (some at employer) which combined to cause an injury, injured worker is entitled to participate even though doctor cannot specify which fall caused the injury.

Vote: 3-0
Opinion by: Judge Grady
Appellate District: 2

September 2010

September 28, 2010

Brown v. CDS Transport, Inc. (9/28/10)

Employment: Review of facts demonstrated that truck driver was independent contractor, not employee.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

September 27, 2010

Troxel v. Ryan (9/27/10)

Employment: Facts demonstrated that construction worker was an employee and not an independent contractor under both common law and statutory test.

Vote: 3-0
Opinion by: Judge Bressler
Appellate District: 12

September 22, 2010

Krull v. Ryan (9/22/10)

Trial Practice: Medical evidence which had been discredited on cross-examination was not sufficient to support causation.

Vote: 3-0
Opinion by: Dinkelacker
Appellate District: 1

September 21, 2010

Kaiser Found. Health Plan Ohio, State ex rel. v. Indus. Comm. (9/21/10)

Permanent Total: Opinion of doctor on combined effects of physical and psychiatric conditions was valid even if doctor had only examined injured worker on psychiatric condition and had not expressly adopted factual findings of doctors who had physically examined injured worker. Requirement that non-examining doctor expressly adopt findings of examining doctors only applies to doctors who conduct no examination of injured worker but base their opinion on a file review.

Vote: 3-0
Opinion by: Judge Brown
Appellate District: 10

September 13, 2010

Wasinski v. PECO II, Inc. (9/13/10)

Trial Practice: Costs associated with deposition of a doctor and discovery deposition of another doctor were properly reimbursed to a successful injured worker under R.C. 4123.512(F), but milage incurred by attorney in attending an oral argument at the Court of Appeals was not reimbursable because it was an everyday cost of doing business.

Vote: 3-0
Opinion by: Judge Preston
Appellate District: 3

September 9, 2010

Grossenbacher, State ex rel. v. Indus. Comm. (9/9/10)

Fraud: Evidence supported finding that claimant who was paid for driving members of the Amish community multiple times a week was engaged in sustained remunerative employment and therefore committed fraud by doing so while receiving permanent total compensation.

Vote: 3-0
Opinion by: Judge Brown
Appellate District: 10

September 7, 2010

McNea, State ex rel. v. Indus. Comm. (9/7/09)

Continuing Jurisdiction: Commission interlocutory order which set forth SHO’s failure to address issue raised by motion properly identified mistake of fact and law and justified exercise of continuing jurisdiction.

Vote: 3-0
Opinion by: Judge Klatt
Appellate District: 10

Schnipke v. Safe-Turf Installation Group, L.L.C. (9/7/09)

Trial Practice: Where a doctor has examined the injured worker, reviewed his records and taken his history, the doctor has provided a sufficient basis for his opinion for it to be admitted as evidence.

Vote: 3-0
Opinion by: Judge Williamowski
Appellate District: 3

September 2, 2010

Ruscilli, State ex rel. v. Indus. Comm. (9/2/10)

VSSR: Court remands case to Commission for it to reconsider SHO order based on incorrect statement of significant testimony.

Vote: 3-0
Opinion by: Judge Connor
Appellate District: 10

August 2010

August 17, 2010

Ohio State Univ. Cancer Research Hosp., State ex rel. v. Indus. Comm. (8/17/10)

Temporary Total: Employee who was terminated after the injury for pre-injury violations of work rules has not voluntarily abandoned his employment and remains entitled to temporary total compensation.

Vote: 3-0
Opinion by: Judge Bryant
Appellate District: 10

G&S Metal Prods. Co., Inc., State ex rel. v. Ryan (8/17/10)

Employer: Evidence BWC interpreted when making premium determination could be interpreted two different ways; court defers to BWC’s factual finding.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

August 16, 2010

Lowe v. Cox Paving, Inc. (8/16/10)

Injury: Instigator of dispute is not entitled to participate for injury occurring after he was hit by a co-employee.

Vote: 3-0
Opinion by: Judge Ringland
Appellate District: 12

July 2010

July 29, 2010

Walters, State ex rel. v. WEK Acquisition Corp., Inc. (7/29/10)

Fraud: Evidence of claimant’s work activities while receiving temporary total and statements regarding her work activities and earnings which were inconsistent with her actual activities and earnings were sufficient to support Commission’s finding of fraud.

Vote: 3-0
Opinion by: Judge French
Appellate District: 10

July 26, 2010

Barber v. Ryan (7/26/10)

Trial Practice: Order which granted a motion to compel medical examination and also granted a motion in limine prohibiting any reference to the medical examination as “independent” was not a final appealable order.

Vote: 3-0
Opinion by: Judge Hendrickson
Appellate District: 12

July 20, 2010

McCue, State ex rel. v. Indus. Comm. (7/20/10)

Temporary Total: When Commission terminates temporary total based on treating doctor’s finding that condition is at MMI, proper date of termination is date of treating doctor’s report, not date of hearing. Therefore, Commission can find overpayment of temporary total compensation paid after the date of the treating doctor’s report and order recoupment of the overpayment.

Vote: 3-0
Opinion by: Judge Brown
Appellate District: 10

June 2010

June 30, 2010

Nevinski v. Dunkin’s Diamonds (6/30/10)

Trial Practice: Requirements for establishing a workers’ compensation claim as an “injury” claim are different from those for establishing a workers’ compensation claim as an “occupational disease” claim. Court is required to utilize a distinct test for each method. A trial court decision which combined elements of both tests was improper because court is required to apply a distinct test for each type of claim.

Vote: 2-1
Opinion by: Per Curiam
Appellate District: 9

June 3, 2010

Dean v. Bur. of Workers’ Comp. (6/3/10)

Trial Practice: Court properly granted summary judgment in asbestosis death claim where employer based summary judgment motion on wife’s deposition testimony that she lacked knowledge that husband was exposed to asbestos in employment and wife did not present any evidence of such exposure in response to motion.

Vote: 3-0
Opinion by: Judge Gwin
Appellate District: 5

Warner, State ex rel. v. Indus. Comm. (6/3/10)

AWW: Commission improperly failed to consider payment of unemployment compensation when calculating average weekly wage; Commission also improperly failed to consider payment of unemployment compensation as proof that period of unemployment was period beyond injured worker’s control which should be excluded from average weekly wage calculation.

Vote: 3-0
Opinion by: Judge Tyack
Appellate District: 10

Bumpus, State ex rel. v. Dayton (6/3/10)

Fraud: Absent evidence that injured worker had received money for activities, or engaged in activities inconsistent with his medical restrictions, there was no basis for finding that injured worker had engaged in fraud by receiving temporary total.

Vote: 3-0
Opinion by: Judge Bryant
Appellate District: 10

June 1, 2010

Phelps v. Dispatch Printing Co. (6/1/10)

Injury: Worker who was injured when on employer’s premises only to collect paycheck pursuant to employer’s policy permitting employees to do so is entitled to participate in the workers’ compensation fund.

Vote: 3-0
Opinion by: Judge French
Appellate District: 10

May 2010

May 25, 2010

Sanders v. Fridd (5/25/10)

Employment: R.C. 4123.741 only provides immunity from a lawsuit where both parties involved in incident were in the course and scope of their employment.

Vote: 3-0
Opinion by: Judge Klatt
Appellate District: 10

May 21, 2010

Bingham v. Evenflo Co., Inc. (5/21/10)

Trial Practice: Where employer filed notice of appeal and did nothing to induce dismissal of complaint, injured worker had obligation to re-file complaint within 1 year of dismissal and failure to do so resulted in judgment for the employer.

Vote: 3-0
Opinion by: Judge Grady
Appellate District: 2

May 18, 2010

YRC, State ex rel. Inc. v. Hood (5/18/10)

Mandamus: When Commission denied permanent total for other reasons, employer could not bring mandamus challenge to decision in order that injured worker did not voluntarily abandon his employment because issue was not ripe for review.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

May 13, 2010

Ochs v. Bur. of Workers’ Comp. (5/13/10)

Death: In the absence of dependents with standing to pursue death benefits, no R.C. 4123.512 appeal could be made from denial of death benefits.

Vote: 3-0
Opinion by: Judge Stewart
Appellate District: 8

April 2010

April 28, 2010

Williams v. Time Warner Cable (4/28/10)

Injury: Injury which occurred while running a part of a marathon relay team which was sponsored by employer did not occur in the course of employment.

Vote: 3-0
Opinion by: Judge Whitmore
Appellate District: 9

April 19, 2010

Williams v. Parker Hannifin Corp. (4/19/10)

Trial Practice: Issue of whether the hypothetical question included proper summary of facts went to the weight of the evidence, not the admissibility, and could be resolved by the jury.

Vote: 3-0
Opinion by: Judge Bressler
Appellate District: 12

April 16, 2010

Chasteen v. Stone Transport, Inc. (4/16/10)

Trial Practice: Because record on appeal did not contain evidence that injured worker informed trial court that he had reviewed requested medical records and found them to be devoid of information relating to condition at issue, Court of Appeals cannot find that trial court abused its discretion in granting employer’s motion to compel.

Vote: 2-1
Opinion by: Judge Singer
Appellate District: 6

April 13, 2010

Wilkes, State ex rel. v. Indus. Comm. of Ohio & Warren Tube Co. (4/13/10)

Temporary Total: Injured worker did not voluntarily abandon his employment when he left hospital before urine test could be taken when there was no evidence that hospital’s request for urine sample was communicated to him, or that the hospital was acting on the employer’s behalf when it sought a urine test.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

April 9, 2010

Powell v. Toledo Pub. Schools (4/9/10)

Injury: Decision on handicap reimbursement is unrelated to issue of allowance and therefore doctrine of collateral estoppel does not apply.

Vote: 3-0
Opinion by: Judge Osowik
Appellate District: 6

Starkey v. Builders Firstsource Ohio Valley, L.L.C. (4/9/10)

Injury: Claim for aggravation may be considered on appeal to court even if claim was only pursued under theory of direct causation administratively.

Vote: 3-0
Opinion by: Judge Sundermann
Appellate District: 1

Heuring v. Meijer, Inc. (4/9/10)

Injury: Trial court properly granted summary judgement allowing injured worker to participate for injuries resulting from fall where only contrary medical evidence was an opinion that the fall had idiopathic causes from doctor who had neither seen videotape demonstrating worker tripping over footstool nor considered statement from customer that worker tripped over footstool.

Vote: 3-0
Opinion by: Judge Singer
Appellate District: 6

April 5, 2010

Kelley v. Ryan (4/5/10)

Injury: Trial court properly instructed jury that injured worker was entitled to participate for injury resulting from horseplay even if he instigated or participated in the horseplay, as long as the employer acquiesced or consented.

Vote: 3-0
Opinion by: Judge Powell
Appellate District: 12

Sammetinger v. Kirk Bros. Co., Inc. (4/5/10)

Injury: Totality of circumstances demonstrates that truck provided by employer was worker’s mobile workplace, therefore injury resulting from accident while driving home in truck occurred in the course of , and arising out of, employment.

Vote: 3-0
Opinion by: Judge Shaw
Appellate District: 3

March 2010

March 31, 2010

Miller v. Bur. of Workers’ Comp. (3/31/10)

Injury: An employee who was injured after falling in a parking lot when leaving restaurant where he had taken a 15 minute paid coffee break is entitled to participate in the workers’ compensation system, the going and coming rule does not apply.

Vote: 2-1
Opinion by: Per Curiam
Appellate District: 9

March 30, 2010

Rader v. Fifth Third Bancorp (3/30/10)

Injury: A worker who suffered a psychological-only injury after seeing a compensable injury to a third party before the effective date of the 2006 amendments is entitled to participate.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

Donohoe, State ex rel. v. Indus. Comm. (3/30/10)

VSSR: Commission improperly denied VSSR award when it held that a widow cannot establish VSSR claim because there were no eyewitnesses because Commission is required to evaluate evidence which included an expert report indicating that a VSSR occurred.

Vote: 3-0
Opinion by: Judge Connor
Appellate District: 10

March 9, 2010

Fairfield City Schools, State ex rel. v. Indus. Comm. (3/9/10)

Employer: Employer was not entitled to handicap reimbursement award for condition which was not listed in statute.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District: 10

March 8, 2010

Ley v. Procter & Gamble Co. (3/8/10)

Trial Practice: Medical expert’s opinion, which was based on history given by injured worker, was admissable even though injured worker could not remember exact words she used in giving history because treating doctor is allowed to testify about history given by the patient and questions about the validity of the history go to the weight, not the admissibility, of the evidence.

Vote: 3-0
Opinion by: Judge Preston
Appellate District: 3

February 2010

February 22, 2010

Clay v. Lakeview Farms, Inc. (2/22/10)

Trial Practice: Court did not abuse its discretion in refusing to grant continuance so doctor could examine new evidence.

Vote: 1-0, 2 concur in judgment only
Opinion by: Judge Rogers
Appellate District: 3

February 11, 2010

Klamert v. Cleveland (2/11/10)

Injury: Going and coming rule only applies if the employee is a fixed situs employee; whether employee is a fixed situs employee depends on overall employment activities, not limited analysis of duties at time of injury.

Vote: 3-0
Opinion by: Judge Celebrezze
Appellate District: 8

January 2010

January 29, 2010

Franks v. Chas F. Mann Painting Co. (1/29/10)

Trial Practice: Denial of temporary total which results in denial of right to continue to participate in a claim can be appealed under R.C. 41231.512.

Vote: 3-0
Opinion by: Judge Singer
Appellate District: 6

January 28, 2010

Whirlpool Corp., State ex rel. v. Indus. Comm. (1/28/10)

Wage loss: There is no absolute requirement that working wage loss claimant conduct a job search; therefore Commission did not abuse its discretion by awarding wage loss to self-employed injured worker who started own business after unsuccessfully searching for work for 92 weeks.

Vote: 3-0
Opinion by: Judge Brown
Appellate District: 10